These Trial Terms and Conditions constitute a contractually binding agreement (collectively, the “Agreement”) between the Armis entity identified in Section 12 below (“Armis”), and the counterparty accepting this agreement electronically (“Customer”) (Armis and Customer each, a “Party,” and collectively, the “Parties”).
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
a. “Aggregated Data” means any data or information related to Customer’s use of the Platform that is used by or on behalf of Armis in an aggregate and de-identified form, including to compile statistical and performance information related to the provision and operation of the Platform.
b. “Authorized User” means any individual who accesses the Platform on Customer’s behalf.
c. “Collector” means any Virtual Appliance.
d. “Confidential Information” means any information disclosed by or on behalf of one Party (“Discloser”) to the other Party (“Recipient”) pursuant to this Agreement that is marked as “confidential,” or in some other manner to indicate its confidential nature. Without limiting the foregoing, the Armis IP (defined in Section 1.4) is Armis’ Confidential Information. Confidential Information does not include any information which: (i) is or becomes generally known and available to the public through no act of the Recipient; (ii) was already in the Recipient’s possession without a duty of confidentiality owed to the Discloser at the time of the Discloser’s disclosure; (iii) is lawfully obtained by the Recipient from a third party who has the express right to make such disclosure; or (iv) is independently developed by the Recipient without breach of an obligation owed to the Discloser.
e. “Content” means any educational content that Armis makes available to Authorized Users through any portal or dashboard feature within the SaaS Component.
f. “Trial Data” means any data collected by the Platform related to Customer’s use of the Platform during the Term.
g. “Documentation” means the user guide, release notes, installation notes, and other materials that Armis delivers to Customer pertaining to the Platform but excluding the Content.
h. “Effective Date” means the date this Agreement is entered into electronically by Customer.
i. “Platform” means the SaaS Component and the Collector.
j. “Platform Assets” means the Platform, Documentation, and Content.
k. “SaaS Component” means the Armis proprietary cloud-based service.
l. “Term” means the period beginning on the Effective Date and continuing through and including the Termination Date.
m. “Termination Date” means the date seven (7) days after the Effective Date.
n. “Virtual Appliance” means the Armis proprietary software.
- Proprietary Rights.1.1 Rights to Use. During the Term and subject to the terms and conditions of this Agreement, Armis hereby grants to Customer a non-exclusive, non-transferable, revocable, and non-sublicensable license to access and use the SaaS Component, Documentation, and Content solely for Customer’s internal business purposes to evaluate the Platform Assets. Without limiting the prior sentence, all use of the Platform must be in accordance with the Documentation.1.2 Authorized Users. Customer is solely responsible for: (a) identifying and authenticating all Authorized Users; (b) approving access by such Authorized Users to the Platform; (c) ensuring the Authorized Users comply with the terms of this Agreement as if they were a party to it, and that none of Customer’s personnel, agents, or advisors who are not Authorized Users access or attempt to access the Platform; and (d) all activities that occur under its and its Authorized Users’ usernames, passwords or accounts. Armis is not responsible for any losses arising due to any breach of this Agreement by any Authorized User or any other personnel, agent or advisor of Customer. Customer will notify Armis immediately of any unauthorized use of the Platform.
1.3 Restrictions. Customer may not, directly or indirectly, and may not authorize any third party to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, structure, ideas, algorithms, or associated know-how, or reconstruct or discover any hidden or non-public elements, of the Platform (except to the extent expressly permitted by applicable law notwithstanding this restriction); (b) translate, adapt, or modify the Platform Assets; (c) write or develop any program based upon the Platform Assets, or, to the fullest extent permitted by applicable law, otherwise use any portion of the Platform Assets in any manner for the purpose of developing, distributing or making accessible products or services that compete with any portion of the Platform Assets; (d) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Platform Assets or any rights thereto; (e) permit any portion of the Platform Assets to be used by any persons other than Authorized Users; (f) transmit to or from the Platform any data, materials or other content that infringes, misappropriates or otherwise violates any third party intellectual property or other rights; (g) alter or remove any trademarks or proprietary notices contained in or on the Platform Assets; (h) circumvent or otherwise interfere with any authentication or security measures of the Platform or otherwise interfere with or disrupt the integrity or performance thereof; or (i) use any portion of the Platform Assets in violation of or non-compliance with any applicable laws, rules or regulations (including regarding export controls). Customer acknowledges that Armis may, but is under no obligation to, monitor Customer’s use of the SaaS Component. Armis may suspend Customer’s or any Authorized User’s access to the SaaS Component for any period during which Customer is, or Armis has a reasonable basis for alleging Customer or such Authorized User is, in noncompliance with any of the prohibited actions in this Section. Customer must promptly notify Armis in writing if it becomes aware of, or has reason to believe, that any of the prohibitions listed in this Section has been breached by Customer or any Authorized User.
1.4 Ownership. Except for the rights granted to Customer in Section 1.1, as between the Parties, Armis solely owns and retains all rights, title and interest, including all intellectual property rights, in and to all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship and other tangible and intangible material and information incorporated into or constituting any portion of the Platform Assets (but excluding any Trial Data) (“Armis IP”). Each Party retains all rights that are not expressly licensed to the other Party in this Agreement and does not grant the other Party any implied licenses in this Agreement under any theory.
- Trial Data and Feedback.2.1 Trial Data. Customer hereby grants to Armis during the Term a non-exclusive, irrevocable (subject to Customer’s rights to terminate the Agreement), non-transferable (except under Section a)), royalty-free and worldwide license, with the right to grant and authorize sublicenses as set forth below, to process, transmit, store, use, disclose, and benefit from the Trial Data in connection with the performance of its obligations or the exercise of its rights under this Agreement. Armis may sublicense the license under this Section to any third party who acts for or in support of Armis.2.2 Aggregated Data. Notwithstanding anything to the contrary in this Agreement, Armis may collect and compile Aggregated Data (including based on Trial Data input into and processing by the Platform). Armis solely owns and retains all rights, title and interest in and to the Aggregated Data.
2.3 Feedback. From time-to-time, Customer may make available to Armis, directly or indirectly, feedback, analysis, suggestions or comments about the Armis IP (collectively, “Feedback”). Customer hereby grants to Armis a non-exclusive, perpetual, irrevocable, transferable, royalty-free and worldwide right, with the right to grant and authorize sublicenses, to use and benefit from such Feedback to provide and improve the Platform and Armis’ business without any compensation or credit due to Customer.
- Customer Account. The Platform may only be used by or for Customer through an account that is specific to Customer (the “Account”). Customer will ensure that the Authorized Users keep their Account login details secure at all times and will treat such Account login details with at least the same degree of care as Customer’s most sensitive confidential information. Unauthorized access or use of the Account or the Platform must be immediately reported to Armis.
- Third-Party Components. The Platform may use or include third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Platform is provided under the terms of this Agreement, nothing in this Agreement prevents, restricts, or is intended to prevent or restrict Customer from obtaining Third-Party Components under the applicable third-party licenses or to limit Customer’s use of Third-Party Components under those third-party licenses. A list of all Third-Party Components in the current version of the Platform, as updated from time to time, is available via Armis’ Trust Portal.
- Confidentiality. The Receiving Party may use the Disclosing Party’s Confidential Information solely to perform its obligations under this Agreement. Except as set forth in the immediately following sentence, the Receiving Party will not disclose the Disclosing Party’s Confidential Information to any third party except to its employees, consultants, affiliates, agents, and subcontractors having a need to know such information to perform its obligations under this Agreement who have signed a non-disclosure agreement with the Receiving Party containing terms at least as protective of the Disclosing Party’s Confidential Information as those contained herein. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that it notifies the Disclosing Party of such required disclosure to enable Disclosing Party to seek a protective order or otherwise seek to prevent or restrict such disclosure. All right, title, and interest in and to Confidential Information are and will remain the sole and exclusive property of the Disclosing Party. The Receiving Party will use no less than reasonable efforts to protect the Disclosing Party’s Confidential Information from unauthorized access, use, or disclosure.
- DISCLAIMER. ARMIS HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, AND FITNESS FOR A PARTICULAR PURPOSE. THE PLATFORM ASSETS ARE PROVIDED ON AN “AS-IS” BASIS WITHOUT ANY WARRANTY AND ARMIS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE PLATFORM ASSETS. WITHOUT LIMITING THE FOREGOING, ARMIS AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE PLATFORM ASSETS DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S ACCESS TO THE PLATFORM ASSETS DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR, OR (C) ANY DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO ARMIS AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S ACCESS OR USE OF THE PLATFORM ASSETS, ANY BREACH BY CUSTOMER OF THIS AGREEMENT, AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
- LIMITATION OF LIABILITY. THE FOLLOWING TERMS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) ARMIS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY LOSS OF BUSINESS, REVENUE, REPUTATION, OR PROFITS, DATA, OR DATA USE), AND (B) ARMIS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE PLATFORM ASSETS UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE ARMIS’ LIABILITY WITH RESPECT TO THIS AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE, $1,000.00.
- Indemnification. Customer will defend or, at its option, settle, any claim brought against Armis by a third party (including any regulatory authority) alleging that the use by or on behalf of Armis of the Trial Data or any other Armis data obtained pursuant to a request from Customer in accordance with this Agreement infringes or misappropriates any third party’s rights or violates any laws; provided, that Armis provides Customer with: (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. Customer will pay all damages finally awarded against Armis (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer. Armis may appear in connection with such claims, at Customer’s expense, through counsel reasonably acceptable to Customer.
- Term; Termination. This Agreement will start on the Effective Date and will continue, unless terminated earlier in accordance with this Agreement, at 12:00 am PT on the day following the Termination Date. Either Party may terminate this Agreement with immediate effect if the other Party materially breaches this Agreement, or for any reason at all, upon written notice to the other party. Upon termination or expiration of this Agreement: (a) the licenses granted in Section 1.1 will expire, and Customer will discontinue any further use and access thereof of the Platform Assets; (b) without limiting the foregoing clause (a), Customer will immediately delete and dispose of all copies of the Documentation, Content, and Virtual Appliance within its possession or control; (c) Armis may delete all Trial Data within its possession or control immediately after termination or expiration of this Agreement, and (d) the following Sections, and all defined terms required to interpret those Sections, will survive: 2.2, 2.3, 7.
- Force Majeure. Armis will not be liable for any delay or failure to perform any of its obligations under this Agreement resulting from circumstances or causes beyond the reasonable control of Armis, including on account of strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government or quasi-governmental authorities actions, acts of terrorism, earthquakes, power outages, internet or other technology failures, pandemic or epidemic (or similar regional health crisis).
- Entire Agreement. This Agreement represents the complete agreement concerning the subject matter hereof and may be amended only by a written agreement executed by both Parties. Any other Customer document that purports to override the terms of this Agreement will not have such effect unless agreed to in writing by Armis.
- Parties. The Armis entity that Customer is contracting with under this Agreement depends on where the Customer is domiciled as follows:a) If Customer is domiciled in Israel, the Armis contracting entity is Armis Security Ltd., an Israeli limited company;
b) if Customer is domiciled in Europe, the Middle East (excluding Israel), or Africa, the Armis contracting entity is Armis Security UK Ltd., a United Kingdom limited company;
c) if Customer is an entity of the federal government of the United States of America, the Armis contracting entity is Armis Public Sector, LLC, a Delaware limited liability company; and
d) if Customer is not domiciled in Europe, the Middle East, or Africa, and is not an entity of the federal government of the United States of America, the contracting entity is Armis, Inc., a Delaware corporation.
- Miscellaneous. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder will not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches. All waivers of rights arising under this Agreement must be made in writing by the Party making the waiver. The Agreement may only be amended by mutual express written agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, that court will amend the provision to the extent necessary to make it enforceable and best reflect the Parties’ original intent. Armis provides the Platform Assets for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to Platform Assets include only those rights customarily provided to the public as specified in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, then it must negotiate with Armis to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in the applicable agreement. Neither Party may assign this Agreement or any of its rights under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either Party in connection with a merger, consolidation, sale of all of the equity interests of the Party, or a sale of all or substantially all of the assets of the Party to which this Agreement relates. This Agreement will be governed by and construed under the laws of the State of California, without reference to principles and laws relating to the conflict of laws. The competent courts of San Francisco will have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement. This Agreement does not, and will not be construed to, create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties. Unless context clearly requires otherwise, whenever used in this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”, the words “hereof,” “hereunder,” “herein,” and similar terms mean under this Agreement (including any attachments hereto), and the word “or” is deemed to mean “and/or”; (b) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; (c) the headings in this Agreement are for reference only and do not affect the interpretation of this Agreement; and (d) references to “ordered” or similar terms pertaining to any Armis property that is licensed or leased under this Agreement means those assets are licensed or leased and is not intended to mean such assets are in fact sold.